Additional remuneration may be paid to the bankruptcy trustee only if the claims of all creditors are fully satisfied at the expense of the bankruptcy estate.

The bankruptcy trustee of the bankrupt LLP "K" B. appealed paragraph 2 of the decision dated May 08, 2012 of the State Institution "D". The statement is motivated by the fact that in accordance with paragraph 2 of Article 69 of the Law "On Bankruptcy" (hereinafter – the Law) LLP "K" legitimately withheld an additional remuneration in the amount of 5% of the funds allocated to satisfy the creditors' claims of each queue. However, GU "D" refused to approve the final report regarding the payment and offered to return the amount of additional remuneration to the bankruptcy estate. By the decision of the specialized interdistrict economic Court of Aktobe region dated August 15, 2012, the application of "K" LLP was satisfied. Paragraph 2, set out in the above-mentioned letter of refusal to approve the liquidation report of the bankruptcy trustee and the obligation to return additional remuneration to the bankruptcy estate, was declared illegal. GU "D" is obliged to eliminate the violation.

By the decision of the Appellate Judicial Board for Civil and administrative cases of the Aktobe Regional Court dated October 02, 2012, the decision of the court of first instance dated August 15, 2012 remained unchanged. By the decision of the Cassation judicial board of the Aktobe Regional Court dated November 14, 2012, the decision of the Court of Appeal dated October 02, 2012 was left unchanged. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized interdistrict economic court of Aktobe region, the decisions of the appellate and cassation judicial boards of the regional court. She made a new decision. The statement of the bankruptcy trustee of the property and affairs of the bankrupt LLP "K" B. regarding the recognition of paragraph 2 of the decision of the State Institution "D" as illegal was left without satisfaction. The petition of GU "D" was satisfied on the following grounds. It can be seen from the case materials that by the decision of the Aktobe City Court of October 04, 2010, K LLP was declared bankrupt and bankruptcy proceedings were initiated. The deadline for bankruptcy proceedings is set for 9 months. The court's decision entered into force on November 01, 2010. By order of the State Institution "D" dated November 04, 2010, B. was appointed bankruptcy administrator of the property and affairs of the bankrupt LLP "K". From the protocol No. 1 dated November 26, 2010 of the creditors' committee of the bankrupt LLP "K" it can be seen that the bankruptcy trustee received a monthly remuneration in the amount of 70,000 tenge, as well as additional remuneration: - in the amount of 4% of the amount of satisfied creditors' claims of the 1st and 2nd stages; - in the amount of 5% of the amount of satisfied creditors' claims in stages 1, 2 and 3; - in the amount of 6% of the satisfied claims of creditors of the 1st, 2nd, 3rd and 4th queues; - in the amount of 7% of the amount of satisfied creditors' claims in stages 1, 2, 3, 4 and 5.

Additional remuneration may be paid to the bankruptcy trustee only if the claims of all creditors are fully satisfied at the expense of the bankruptcy estate.

The Creditors' Committee approved an estimate of administrative expenses in the amount of 2,892,000 tenge for the bankruptcy proceedings period from November 04, 2010 to August 04, 2011. From the final report of the bankruptcy trustee dated April 27, 2012, it is clear that the creditors' claims are included in the register of creditors' claims: There are no queues; 2 queues – 11 192 900 tenge; 3 queues – 86 160 800 tenge; 4 queues – 11 471 400 tenge; 5 queues – 477 413 100 tenge. The total accounts payable amounted to 586,238,300 tenge. There are no accounts receivable. Administrative expenses amounted to 5,011,700 tenge, including 1,260,000 tenge current remuneration of the bankruptcy trustee and 1,172,000 tenge additional remuneration. In bankruptcy proceedings, creditors' claims in the amount of KZT 27,294,000 were satisfied, including: claims of loans of the 2nd stage in the amount of KZT 11,193,000 (100%); claims of creditors of the 3rd stage in the amount of KZT 16,101,000 (19%); claims of creditors of the 4th stage – not repaid; claims of creditors of the 5th stage – not redeemed. When considering the case, the local courts were guided by the provisions of subparagraph 2) of paragraph 2 of article 69 of the Law, according to which additional payments are made to the bankruptcy trustee based on the results of his activities and are determined by the creditors' committee in the amount of no more than seven percent of the funds allocated to satisfy creditors' claims. 27,294,000 tenge was allocated from the bankruptcy estate to satisfy creditors' claims, due to which the claims of creditors of the second stage were satisfied (wage arrears were paid). The claims of creditors of the third stage secured by collateral have been partially satisfied, while those of the fourth and fifth stages have not been satisfied at all. The creditors' Committee has set the amount of additional remuneration to the bankruptcy trustee in percentage terms, depending on the satisfaction of creditors' claims forming a set of corresponding queues. The additional remuneration of the bankruptcy trustee is not included in the administrative expenses, which are reimbursed from the bankruptcy estate until the creditors' claims of the corresponding queue are satisfied.These provisions, fixed in paragraph 1 of article 75 of the Law, are aimed at ensuring full reimbursement of administrative expenses incurred in bankruptcy proceedings.

The monthly remuneration of the bankruptcy trustee is included in the administrative expenses. At the same time, paragraphs 2-5 of Article 75 and article 76 of the Law establish the procedure for satisfying the creditors' claims of each stage at the expense of the bankruptcy estate. At the same time, several rules are established: - the claims of creditors of the subsequent queue are subject to satisfaction only after the creditors of the previous queue have been fully satisfied.; - if the property included in the bankruptcy estate is insufficient to fully satisfy the creditors' claims of the corresponding queue, the claims of each creditor of this queue are satisfied in proportion to the amounts of his claims.; - creditors' claims that have not been satisfied due to a lack of bankrupt property, as well as those that have not been declared before the liquidation balance sheet is approved by the court, are considered to be settled. These rules indicate that in bankruptcy proceedings, the bankruptcy trustee begins to satisfy the creditors' claims of the corresponding queue when the funds necessary for the full satisfaction of these claims have been received (accumulated) through the sale of the bankruptcy estate. The bankruptcy trustee has the right, on account of the amount of monetary claims included in the register, to transfer in kind to the creditors of this queue property equivalent in value to the amount of their monetary claims, if the creditors have expressed a desire to receive such property individually or collectively in kind.

These rules also mean that the bankruptcy estate (bankrupt's property) in bankruptcy proceedings should be aimed at satisfying creditors' claims after deducting administrative and court costs from it. The bankruptcy trustee does not have the right to take precedence over the creditors of the corresponding queue to receive additional remuneration from the funds to be paid to the creditors of the corresponding queue (creditors whose queue is designed to fulfill their claims). Despite the fact that the creditors' committee provided for the payment of additional remuneration to the bankruptcy trustee as a percentage of the funds allocated to satisfy the creditors' claims of the relevant queue, such a decision does not comply with the content of subparagraph 2) of paragraph 2 of Article 69 of the Law. The expression "from funds aimed at satisfying creditors' claims" used by the legislator in this provision means that additional remuneration may be paid to the bankruptcy trustee in the amounts prescribed by law from the total amount of funds aimed at satisfying the claims of all creditors. Such remuneration is payable based on the results of the bankruptcy trustee's general activities in bankruptcy proceedings and at the expense of the property remaining after satisfying the claims of all creditors. If there are unsatisfied claims of creditors of any stage, no additional remuneration is payable to the bankruptcy trustee.  This interpretation of the provisions of subparagraph 2) of paragraph 2 of Article 69 of the Law is aimed at respecting the interests of creditors and bankrupts in bankruptcy proceedings. In accordance with part 1 of Article 279 of the CPC, the court has the right to recognize decisions, actions (inaction) of a state body (its officials) if any of the grounds provided for in subparagraphs 1) – 3) of this norm is reliably established at a court hearing. During the consideration of the case, the local courts did not pay attention to the fact that GU "D", in accordance with its authority, checked the final report of the bankruptcy trustee and left it without approval, suggesting that he eliminate the violation of the provisions of subparagraph 2) of paragraph 2 of Article 69 of the Law, did not indicate which of his rights had been violated. The local courts also did not pay attention to the fact that the bankruptcy trustee, even if his actions to obtain additional remuneration from the bankruptcy estate due to violation of the interests of creditors of the third stage were based on the law, incorrectly calculated the amount of additional remuneration. Based on the literal interpretation of the creditors' committee's decision, the bankruptcy trustee could receive an additional remuneration of 5% only if he fully satisfied the claims of all creditors of the third stage. It can be seen from the case file that the claims of creditors of the third stage have been satisfied by 19%.

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